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In re H.M.J.

Court of Appeals of Texas, Sixth District, Texarkana

June 19, 2018


          Date Submitted: June 13, 2018

          On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 86319

          Before Morriss, C.J., Moseley and Burgess, JJ.



         Baby Hanna was born addicted to methamphetamine and, immediately upon her birth, was placed into foster care.[1] On the day after her birth, the Department of Family and Protective Services (Department) filed a petition to terminate Amber Summer's and Frank Jacob's parental rights to the child. After an evidentiary hearing, the trial court granted the Department's petition and terminated the parental rights of both parents. Summer and Jacob have each appealed.

         Summer is represented on appeal by court-appointed counsel who has filed a brief in accord with the requirements of Anders v. California, 386 U.S. 738 (1967). Because our independent review of the appellate record establishes that counsel is correct in determining that Summer's appeal is frivolous, we affirm the trial court's termination of her parental rights to Hanna.

         In his appeal, Jacob argues that the evidence was legally and factually insufficient to support the trial court's decision (1) that grounds existed under Section 161.001(b)(1) of the Texas Family Code to terminate his parental rights and (2) to not appoint him as Hanna's managing conservator. Because we find the evidence both legally and factually sufficient to support the trial court's finding under Ground E of Section 161.001(b)(1), we affirm the trial court's termination of Jacob's parental rights to Hanna and its conservatorship order.

         I. Factual and Procedural Background

         Annie Downs, the Department's caseworker, testified that Hanna suffered underdeveloped lungs and other medical infirmities as a result of Summer's prenatal drug abuse. At trial, the twenty-nine-year-old Jacob admitted that he had been using methamphetamine since he was seventeen. While Summer was pregnant, Jacob was arrested on September 16, 2016, for possession of methamphetamine. During her testimony, Downs said Summer claimed to her that Jacob used drugs while in her presence and that she admitted to using methamphetamine intravenously while pregnant with Hanna. Downs also stated that Child Protective Services (CPS) records revealed that Summer had prior history of using drugs while pregnant with other children. According to Andy Garner, an investigator for CPS, Summer reported using drugs at least three times per week. Hanna was immediately removed from Summer's and Jacob's care on the day she was born, in March 2017, and was placed in a "foster-to-adopt home."[2]

         Garner testified that Jacob refused to take a hair-follicle test following the child's removal. On April 12, Jacob had a scheduled visitation with Hanna, but tested positive for amphetamine and methamphetamine after Downs suspected him of being high on drugs.[3] On April 19, the trial court ordered Summer and Jacob to complete a psychological evaluation, counseling sessions, parenting classes, a drug and alcohol assessment, and drug treatment, and also mandated compliance with all of the provisions of the Department's family service plan. Soon thereafter, Jacob was arrested and, on April 27, 2017, was convicted of possession of a prohibited weapon. Jacob signed his family service plan in May 2017 while incarcerated. Downs testified that Summer and Jacob both failed to complete any portion of their respective family service plans.[4]

         Jacob cited his incarceration as the reason for his inability to complete the family service plan. He testified that he had posted a bond following his September 2016 arrest, but was subsequently arrested on a bond violation in January 2017 after he was found with brass knuckles. Jacob stated that he remained in jail after his April 2017 conviction and, on August 18, 2017, was also convicted of the September 2016 possession of methamphetamine offense. After the State's repeat-offender allegations were found true, Jacob was sentenced to five years' imprisonment.

         Jacob admitted that he knew Summer was pregnant in the second month of her pregnancy. Although Jacob used methamphetamine intravenously while Summer was pregnant, he denied using the drug with her during that time. He testified that they were not living together and were not in a romantic relationship.[5] Jacob stated, "When we got together she got pregnant, she wouldn't quit doing drugs. I tried to keep her from doing drugs. To keep from going to jail I had to get away from her." Jacob informed the trial court that he would occasionally visit Summer to check on her and deliver food. Although he admitted to using drugs during the pendency of the case before his scheduled visit with Hanna, Jacob claimed that he had turned over a new leaf and had quit his addiction. During cross-examination, Jacob testified that (due to her continued drug use) he knew Summer would be unable to care for Hanna, but nevertheless, continued his drug use until his incarceration.

         In light of the facts of this case, Downs testified that termination of Summer's and Jacob's parental rights was in Hanna's best interests. According to Downs, Hanna was bonded with her foster family, who had provided for her emotional and physical needs since her birth and wanted to adopt her. Downs said that while Hanna had no bond with Jacob and Summer had provided no support to Hanna, the foster family would be willing and able to provide for the child's needs in the future. Sharon Eubanks, the Court Appointed Special Advocate, also testified that termination of parental rights was in Hanna's best interests and that the foster family had provided the eleven-month-old with a safe and stable environment.

         Jacob testified that he loved Hanna and wanted to provide for her. Although he admitted that he was unable to care for the child due to his incarceration, he opined that he would be freed in October 2018. Jacob added that he was enrolled in parenting classes and, because he only had an eighth-grade education, was working on obtaining his G.E.D. Yet, Jacob acknowledged that Hanna was "in a great position" with her foster family and considered their home a good one. Faced with the hypothetical position posed that his incarceration could last for more than a few years, Jacob did not believe that it would then be in Hanna's best interest to remove her from her foster family. His wish was for Hanna to be happy and that her wants and needs were properly tended.

         After hearing the evidence, [6] the trial court terminated Summer's and Jacob's parental rights to Hanna. With respect to Jacob, the trial court found that he: (1) voluntarily left Hanna alone or in the possession of another without providing adequate support for her and remained away for a period of at least six months; (2) knowingly placed or knowingly allowed Hanna to remain in conditions or surroundings which endangered her physical or emotional well-being; (3) engaged in conduct or knowingly placed Hanna with persons who engaged in conduct which endangered her physical or emotional well-being; (4) constructively abandoned Hanna, who had been in the temporary managing conservatorship of the Department for not less than six months, after (a) the Department made reasonable efforts to return Hanna, (b) he did not visit or maintain significant contact with the child, and (c) he demonstrated an inability to provide the child with a safe environment; (5) failed to comply with the provisions of a court order requiring the completion of a family service plan, which was necessary for him to obtain Hanna's return from the Department, which had temporary managing conservatorship of Hanna for not less than nine months as a result of her removal for abuse or neglect; and (6) knowingly engaged in criminal conduct that had resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing of the Department's petition. See Tex. Fam. Code Ann. § 161.001(b)(1)(C), (D), (E), (N), (O), (Q) (West Supp. 2017).

         II. The Appellate Record Establishes that Summer's Appeal Is Frivolous

         "The procedures set forth in Anders are applicable to an appeal from a trial court's order terminating parental rights when an appellant's appointed appellate counsel concludes that there are no non-frivolous issues to assert on appeal." In re G.P., 501 S.W.3d 252, 253 (Tex. App.- Texarkana 2016, no pet.) (citing In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016) (per curiam)). The Anders brief filed by Summer's counsel presents a professional evaluation of the record demonstrating why there are no arguable grounds for reversal. Counsel has established that he provided Summer with copies of the brief and the appellate record, and has also notified Summer of her right to file a pro se ...

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